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OBA Ethics Counsel

Ethics Opinion No. 294

Adopted May 20, 1978

STATEMENT OF FACTS

A Public Defender is representing co-defendants who are charged with a criminal offense. One defendant desires to testify and such testimony would be detrimental to the other co-defendant. The attorney/public defender withdraws from the case because of the conflict of interest. The District Judge appoints another attorney from the Public Defender's office to represent the defendant.

INQUIRY

Is it ethical for an attorney in the Public Defender's office to represent a defendant charged with a criminal offense where another member of the Public Defender's staff has withdrawn from the case because of a conflict of interest?

OPINION

Disciplinary Rules are DR 5-105(D) which provides:

"If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."

and Disciplinary Rule DR 5-105(B) provides:

"A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, ...."

Disciplinary Rule 5-105(D) requires an attorney to decline employment or to withdraw from a case when an associate or partner has withdrawn from the case under DR 5-105(B) because of a conflict of interest in representing co-defendants. The question presented to the Committee is whether the Public Defender's office is such that it would be interpreted as a law firm or an association under the Disciplinary Rules.

The Florida Supreme Court had before it the identical questions which has been presented to the Committee.1 In the case, the Public Defender was appointed to represent multiple defendants and a conflict of interest in defending co-defendants arose. The Public Defender filed a Motion to Withdraw because of this conflict. The Motion was denied for the reason that there were separate attorneys within the Public Defender's office who could represent the various co-defendants. The Public Defender appealed on the ground that under the Florida Code of Professional Responsibility DR 5-105(2)2 it would be unethical for a member of the Public Defender's office to represent the defendants since another member had withdrawn because of a conflict of interest. The Court held that the Public Defender's office was a firm within the Code of Professional Responsibility and that the Sixth Amendment guarantees of the assistance of counsel contemplates that members of the same firm cannot represent conflicting interests. Therefore, the court said it would be improper for a lawyer to be appointed from the Public Defender's office to represent conflicting interests.

The Committee is of the opinion that there is no basis for determining that the Public Defender's office is different from a law firm or association. The Public Defender's office and law firms or associations are similar in that their offices are located in the same building, all members have access to the same files, have access to confidential information obtained by other members of the office, the same office personnel are utilized, and there is an overlapping of sources of information from various persons including investigators and witnesses. Since the Public Defender's office is in the same position as a law firm they should not be excluded from DR 5-105(D).

It is essential that the public have confidence in the Public Defender's office and the legal profession as a whole and in order to avoid the appearance of impropriety on the part of lawyers involved in the representation of criminal defendants it is imperative that individual attorneys and their associates or partners withdraw from cases wherein the possibility of impropriety might arise.

Therefore, the Legal Ethics Committee of the Oklahoma Bar Association finds that it is improper and in violation of the Disciplinary Rules for an attorney/public defender to represent a defendant or co-defendant charged with a criminal offense wherein another member of the Public Defender's office has withdrawn from the case because of a conflict of interest.

1 Turner v. State, Fla.App., 340 So.2d 132 (1976).

2 Florida's DR 5-105(D) is identical to Oklahoma's DR 5-105(D).